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Handling Pro Se Defendantsand Trial Process

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By session’s end, you will:

Know the Responsibilities of the Judge in Pro Se Defendant Proceedings

Know the Rights of the Defendant (and State) in Pro Se Defendant Proceedings

Know the Proper Procedures for Handling Trials Involving Pro Se Defendants

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Out of Court Proceedings

Taking of Plea by Clerk or Judge

Do not give legal advice to Pro Se Defendant yourself or allow anyone under your control (real or perceived) to give legal advice to Pro Se Defendant

Prohibit Clerks and Staff from giving any legal advice to Pro Se Defendant

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The plea from the Pro Se Defendant should be:

Guilty;

Not Guilty; or

No Contest - ONLY4

If the Plea is Guilty or No Contest:

The Judge must ensure that the plea is freely entered by Defendant, with knowledge of the consequences of the plea

The Judge must ensure that the plea is entered by Defendant himself or herself only

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If the Plea is Not Guilty:

The Judge should set the trial to the first available date

The Judge should advise Pro Se Defendant of rights on the day of trial, before trial commences

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CONVERSATIONS WITH THE JUDGE OUTSIDE OF THE COURTROOM ARE STILL COURT PROCEEDINGS

Out of Court conversations with Pro Se Defendant should be discouraged

Out of Court discussions with Pro Se Defendant should be general and informative

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Judge should immediately make a written record of any Out-of-Court discussions or conversations

Both sides (Defendant and State) should be present when Out-of-Court discussions are held (Ex Parte Rules)

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Judge’s Responsibilities

The Judge must ensure that Pro Se Defendant receives a fair trial, without prejudicing the State

The Judge must ensure that the Pro Se Defendant is not unduly harmed or helped by proceeding Pro Se

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The Judge must ensure that the Pro Se Defendant fully understands the proceedings and knows how to participate properly

The Judge must ensure that Rules of Evidence and Procedure are followed (even in non-record Courts)

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The Judge must ensure that proper decorum is maintained throughout the plea or trial process

The Judge must be prepared for disruptive behavior and address the situation promptly and efficiently

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The Judge must ensure that all questions of law are answered and ruled upon fairly and accurately

In jury trials, the Judge must ensure that all questions of fact are submitted to the jury (and be able to differentiate between questions of fact and questions of law)

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The Judge must ensure that he/she makes no statement and takes no action (or demonstrates any body language) that would lead to the belief that the Judge is favoring or disfavoring Defendant

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The Judge must ensure that the judgment of the Court is fair and unbiased, not based on sympathy for nor animosity against the Defendant for his/her having proceeded Pro Se

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Rights of the Pro Se Defendant

Absolute right to proceed Pro Se, without an attorney

Right to hire an attorney if the Defendant wants an attorney (Court does not have the obligation to appoint an attorney in Class C cases)

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Right to testify and right not to testify (if he/she chooses not to testify, there should be no effect)

Right to examine the Complaint before trial

Right to make opening statement16

Right to hear all testimony introduced as evidence

Right to cross-examine State’s witnesses

Right to call witnesses, right to examine witnesses, and right to present Defense evidence

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Right to have Court issue subpoenas to compel the appearance in Court of witnesses who are otherwise reluctant to appear and testify

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Right to object (on legal grounds) to questions posed by the Prosecution

Right to make a closing argument

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Additional Rights in Jury Trials

Right to voir dire jury panel

Right to make peremptory strikes (usually three)

Right to request Court to strike jurors for cause (unlimited number)

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Right to ask Court for bench conference (outside of the presence of the jury) on questions of law

Right to make jury-related Motions (Motion to Shuffle, Challenge to the Array, Batson Motion, etc.)

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Basic Admonitions to Pro Se Defendant

“You have a right to testify or not to testify, that is your choice

“If you choose to testify, anything you say can be used against you

“If you choose not to testify, that fact alone cannot be used against you

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“You have a right to call witnesses of your own to testify

“You have a right to have the Court order subpoenas to compel the appearance in Court of witnesses who would be in your favor

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“You have a right to cross-examine any witnesses called to testify by the Prosecution

“On cross-examination, you may only ask questions of the witness based upon their testimony from the witness stand

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“You may not argue with the witness or make any statement at that time, you may only ask questions

“The Prosecution has the right to object if you attempt to make a statement or argue with the witness during cross-examination

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“You may make a statement to the Court (or to the Jury) only if you take the stand to testify

“As stated, you have the right to testify or not to testify, and if you testify, you may be cross-examined

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“You are not obligated to present any evidence at all if you choose not to

“The Prosecution has the burden of proof, and it must prove your guilt beyond a reasonable doubt

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“If you do not testify or call any witnesses or present any evidence, the decision will be made solely on the basis of the testimony that is presented from the witness stand

“If you are found guilty, the punishment is by fine only”

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“The jury will determine whether you are guilty or not guilty

“If you are found guilty, the jury will determine the fine to be imposed, unless you have specifically requested the Judge to determine the fine

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Why Is This Important?

Birdwell v. State, 10 S.W.3d 74 (Tex. App.-Houston [14th Dist.] 1999) (Petition for Discretionary Review Refused June 28, 2000)

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“Once the right to self-representation has been asserted in a timely manner, namely, before the jury is impaneled, the trial judge is obliged to make the accused aware of the consequences of self-representation.

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“Thereafter, if the accused maintains his desire to proceed pro se, he should be allowed to do so as long as the assertion of his right to self-representation is unconditional and not asserted to disrupt or delay trial proceedings.

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“Although the exercise of the right of self-representation may cause some inconvenience or even disruption in the proceedings, so long as it is not a calculated obstruction, the delay cannot be used to deny the accused of the right to self-representation.

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“A defendant’s clear and unequivocal request for self-representation, followed by an unmistakable denial of that right, is sufficient to preserve the alleged error.”

NOTE: Birdwell has been cited as authority by at least 10 Texas Court of Appeals Decisions.

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Summary of Trial Procedures Jury Panel Seated. Pretrial Motions (Motion to Shuffle,

Batson Motion, Challenge to Array).

NOTE: If Defendant intends on asking for deferred disposition at end of trial, Motion for same must be made at this point. If Defendant intends on asking for the Judge to impose sentence if he/she is found guilty, he/she must make that request at this point.

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Jury Selected and Sworn In.

Preliminary Information Given to Jury.

Prosecution Announces “Ready”.

Defendant Announces “Ready”.36

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Voir Dire of Jury Panel (Prosecution, then Defense)

Parties Exercise Jury Strikes Strikes for Cause FirstThen Peremptory Challenges

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Defendant is Arraigned by Prosecution (Charge is read to the Defendant).

Defendant Pleads “Not Guilty” (if Defendant does not plead, a plea of “Not Guilty” is entered by the Court).

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All Witnesses are Sworn by Judge.

All Witnesses are Placed “Under the Rule”.

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Prosecution Makes Opening Argument.

Defendant Makes Opening Argument.

Note: Defendant can make opening statement at beginning of trial, or waive opening until presentation of Defense case in chief, or make no opening statement at all. 40

Prosecution Calls Witnesses and Offers Testimony and Evidence.

Defendant Cross-Examines Prosecution Witnesses.

Rebuttal by Prosecution.

Prosecution Rests.

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Defendant Makes Directed Verdict Motion (if Defendant chooses to do so).

Court Rules on Motion, and

If Motion is Denied, Defendant Makes Opening Statement.

If Motion is Granted, Defendant is found “Not Guilty”.

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(If Motion for Directed Verdict denied): Defendant Calls Witnesses and Offers Testimony and Evidence.

Prosecution Cross-Examines Defense Witnesses.

Rebuttal by Defendant.

Defendant Rests. 43

Prosecution Offers Rebuttal Witnesses.

Defendant Cross-Examines.

Rebuttal by Prosecution.

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Prosecution Rests and Closes.

Defendant Closes.

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Written Charge to the Jury is Prepared by the Court (the Judge) and Submitted to Prosecution and Defendant for Review.

Changes to Jury Charge, if any, Offered by Parties, and Ruled on by Court.

Any Motions Are Heard by Court.46

Jury Charge is Read by Judge to Jury.

Prosecution Gives Closing Argument.

Defendant Gives Closing Argument.

Prosecution Gives Rebuttal Argument.

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Jury Retires to Deliberate.

Jury Returns with Verdict.

Jury is Dismissed (With Thanks of Court).

Court Enters Verdict as Judgment of Court.

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If Verdict is “Guilty”, Defendant is Notified of Procedure to Pay Fine and of Rights and Procedure for Appeal, or

If Verdict is “Not Guilty”, Defendant is Discharged and Released.

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NOTE:

If the Defendant is found Not Guilty, either by a Jury or by the Court, the Court MUST advise the Defendant of the right to expunction of the records under Texas Code of Criminal Procedure Article 55.01

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C.C.P Art. 55.01 (in part):

(a) A person who has been placed under … noncustodial arrest for commission of … a … misdemeanor is entitled to have all records and files relating to the arrest expunged if: (1) the person is tried for the offense …

and is:(a) acquitted by the trial court …

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Summary

Consider Using Handout “Introductory Statement” Before Any Proceedings and Using “Your Rights at Trial” Before Trial

Be Cautious Regarding any Out-of-Court Conversations, and Keep a Record

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REMEMBER: the (Many) Responsibilities of the Judge in Pro Se Defendant Proceedings

REMEMBER: The Judge Must Protect the Rights of the Pro Se Defendant at All Times

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REMEMBER: The Judge Must Protect the Rights of the State at All Times

REMEMBER: The Failure of the Court to Grant a Pro Se Defendant the Right to Proceed Pro Se is prima faciereversible error

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Thank you for your Attention

Feel free to contact me if there are any questions or concerns:

C. Victor LanderJudge of the Municipal CourtCity of Dallas, Texas214/671-9901 or 214/671-9935 (direct)Email: victor.lander@DallasCityHall.com

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YOUR RIGHTS AT TRIAL

You have certain rights once your case is set to go to trial. You have the right to

have a lawyer to represent you, or you may proceed on your own and represent yourself.

This is called proceeding Pro Se. If you decide to represent yourself, you have all of the

rights of an attorney, but you also have all of the responsibilities. The Court (the Judge)

will expect you to know the Texas Rules of Evidence, the Texas Rules of Criminal

Procedure, the Texas Penal Code, the Traffic Code, and the proper conduct of an attorney

in the Courtroom at all times, particularly if you want a jury trial. Once the trial has

begun, either jury or by the Court, the Court cannot assist you in these matters. You

should understand that you are opposed in this case by an Assistant City Attorney, who is

a prosecutor and conducts criminal trials five days a week.

Proceedings in this Court begin with a written complaint. You have a right to

examine this complaint before trial. You are entitled to hear all testimony introduced

against you. You have the right to cross-examine any and all witnesses who testify

against you. On cross-examination, you may only ask questions on the facts and

circumstances surrounding the alleged violation. You may not argue with the witness or

make any statement at that time, you may only ask questions. You may make a statement

if you decide to take the stand and testify. You have the right to testify, and you have the

right not to testify, that is your choice. If you choose to testify, anything that you say can

be used against you. If you choose not to testify, that fact alone will not be used against

you in determining whether you are Guilty or Not Guilty of the charge against you.

The Prosecution gets to go first and present its case, since it has the burden of

proof. After the Prosecution has completed its case, you may present your case. You

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have a right to call witnesses to testify on your behalf, and you have a right for the Court

to Order subpoenas to make sure that witnesses who would be in your favor appear in

Court. Such subpoenas should have been issued well in advance of the date of the trial.

Your witnesses can only testify about matters of which they have personal knowledge.

The Prosecution has the right to cross-examine your witnesses, and of course if you

testify, the Prosecution has the right to cross-examine you. You must ask your witnesses

only direct questions and you may not ask leading questions.

If during the trial you have an objection to a question asked by the Prosecution,

you may rise and object, but you must be able to state a legal ground for your objection.

After both sides have concluded all testimony, including rebuttal testimony by the

Prosecution, and after the Prosecution has given its closing argument, you may rise and

make a closing argument and tell the Court (or the Jury) why you feel that you should be

found Not Guilty of the charge against you. But such a statement can be based only on

testimony given under oath from the witness stand. No new facts or information can be

used or raised by you (or by the Prosecution) on closing argument, and if you do raise

such information or facts, an objection can be made.

After the verdict, if you are found Not Guilty, you will be free to go, and you will

owe nothing.

[In a Court of No Record] If you are found Guilty, you will have one (1) day in

which to make a Motion for a New Trial (if you wish), you will have ten (10) days in

which to appeal the verdict (if you wish), or you will have thirty (30) days in which to

pay the full fine and all Court costs.

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[In a Court of Record] If you are found Guilty, you will have ten (10) days in

which to make a Motion for New Trial (if you wish), you will have thirty (30) days in

which to appeal the verdict (if you wish), or you will have thirty (30) days to pay the full

fine and all Court costs.

If you decide to appeal, it will be necessary to post an Appeal Bond of twice the

amount of the fine and costs. It is suggested that any appeal be by a licensed attorney.

SPECIAL NOTE ON JURY TRIALS

The jury trial starts with the selection of a jury from the jury panel. The

Prosecution has the right to question the members of the jury panel first to determine

which individuals the Prosecution feels may be the best persons to serve as jurors. After

the Prosecution completes its voir dire, it is then your turn to question the members of the

jury panel to determine which persons you feel may be the best persons to serve as jurors.

After the panel has been questioned by both sides, each side will have the opportunity to

strike, or mark out, three jurors from the jury list for any legal reason. These strikes are

called Peremptory Challenges. Each side will also have the opportunity to strike an

unlimited number of persons who are found to have a bias or prejudice which would

make their service on the jury impossible. These strikes are called Challenges for Cause.

The first six persons remaining on the list who have not been struck by either side or by

the Court will become the jury. If there are less than six persons remaining, the parties

can agree to try the case to a jury of less than six persons, but if either side objects to

proceeding with less than six jury members, the jury panel is “busted” and a new jury

panel must be called up.

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SUMMARY OF TRIAL PROCEDURE

1. Voir Dire and Selection of the Jury

2. Jury Sworn In

3. Prosecution and Defense Announce Ready

4. Complaint is read by Prosecution to Defendant

5. Defendant enters plea of Not Guilty

6. All witnesses are sworn in, the Rule may be invoked

7. Prosecution offers testimony

8. Cross-examination by Defense

9. Rebuttal testimony by Prosecution

10. Defense offers testimony

11. Cross-examination by Prosecution

12. Rebuttal testimony by Defense

13. Motions heard by Court

14. Final Argument by Prosecution

15. Final Argument by Defense

16. Final Rebuttal by Prosecution

17. Jury retires to consider Verdict

18. Verdict rendered by Jury and entered by Court

19. Motion, Appeal, or Discharge

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INTRODUCTORY STATEMENT FOR JURY TRIAL DOCKET

Good morning, Ladies and Gentlemen, I am Judge _______________, and this is the Municipal Court for the City of ________________. This is the Jury Trial Docket. The purpose of this docket is to give you the trial that you previously requested. The first thing that I’m going to do is to call the docket. By calling the docket, I am just calling the roll. When you hear your name, please raise your hand and say “Here”. By announcing that you are here, you will be entering your initial plea of “Not Guilty” to the charge that brought you here. The State will have one of three announcements that they can make at this first docket call. They can say “State Ready”, which means that the State is ready to proceed, the police officer or other witness is present and ready to go. Or the State can announce “State Ready Pending”, which means that the State is ready pending the arrival of the police officer witness. Or the State can announce “State Not Ready”, for any of a number of reasons, which means that in all likelihood the case will be dismissed. A fourth option will be for the State to raise a legal Motion on the case, which we will have to discuss later. Is the State ready?

[Docket Call] [Check for late arrivals] Mr./Madam Prosecutor, you may go get your witnesses. Ladies and gentlemen, there are a few matters that I need to go over before we do the next

docket call. All of you are here in regard to alleged violations of City ordinances or State laws dealing with Class C misdemeanors or traffic offenses. Most of the cases on the docket today are alleged traffic violations. The significance of a traffic case in Texas is that intent is not a necessary element of the offense, and the Court cannot consider the intent of the operator of a motor vehicle in any way for any reason. In other words, it does not matter if the operator intended to violate a traffic law or not. If it is proven beyond a reasonable doubt that a motor vehicle under the control of the operator violated any of the number of laws and ordinances related to traffic, then the finding would have to be “Guilty”. Matters such as broken or defective speedometer, not familiar with the neighborhood, didn’t see the sign, didn’t own the car, didn’t see the officer, while these may be reasons, they are not legal defenses.

To balance this very rigid body of law, the legislature has provided two means by which

traffic matters can be disposed of and dismissed on a plea of “Guilty” or “No Contest” without the necessity of trial and without a finding of guilty on your driving record. The first is to attend an approved driver’s training program, driving school, defensive driving, it is called a number of things. This is a six-hour course, usually broken into two three-hour classroom sessions, and, upon completion, the charge that brought you here would be dismissed. There would be no conviction on your record. There would be no fine owing, just the Court costs. In fact, you may be entitled to a 10 percent discount on your insurance cost for having taken and completed the course. To be eligible for defensive driving, you must be charged with a moving traffic violation; you must not be charged with a speeding offense which alleges a speed of 25 miles an hour or more over the posted speed limit; you must possess a valid Texas driver’s license; it must not be a Commercial Driver’s License (known as a CDL); you must possess valid proof of financial responsibility, otherwise known as insurance; and you must not have had a citation dismissed under defensive driving within the last one year. If you meet these basic qualifications, the law gives you the right to have the matter set for defensive driving. All you have to do is to let the Prosecutor know when he/she returns that this is what you wish to do, and it will be done. The law gives you at least 30 days to pay the Court costs and 90 days to complete the course and to get all the information back to the Court, and then the case would be dismissed.

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If you are not eligible for defensive driving, or if you choose not to take it, or if you are charged with another Class C Misdemeanor offense over which this Court has jurisdiction, such as Assault, Theft, Disorderly Conduct, Public Intoxication, Minor in Possession, Manifestation, Curfew Violation, and all other Class C cases and Ordinance violation cases, then the second alternative to trial and also keeping it off of your record is what we call the Deferred Adjudication [under Chap. 42 of the Code of Criminal Procedure] or Deferred Disposition [under Chapter 45 of the Code of Criminal Procedure]. Deferred is similar to Probation – on a plea of “No Contest”, the charge that brought you here would be deferred for a period of anywhere up to 6 months, and, if all of the terms and conditions of the Deferred are met, at the end of the Deferred period the charge would be dismissed. The basic terms are that you post a non-refundable fee in the amount of the administrative fee and costs, and that you not be convicted of any State, County, Federal, or Municipal law or ordinance violation within the Deferred period. Other terms and conditions can be added by the Court, including the condition taking and completing the defensive driving course and any other condition that the Court deems appropriate under the particular circumstances, and you should understand that the grant or denial of Deferred is at the sole discretion of the Court. Again, the law does not allow Deferred in moving traffic violation cases for holders of Commercial Driver’s Licenses.

[OPTIONAL] The State has announced “Ready Pending” on most of these cases. That

means that the State has one hour to get their officers here. The reason we have a second docket call in an hour is because the City has the “Stand By” system for its trial Courts. This system allows those officers who are on duty to remain on duty, covering their beats, until they are called to this Courtroom, and it allows those officers who are off duty to remain off duty, thus saving all of us as taxpayers a minimum of 3 hours of time and a half of overtime for each off duty officer called in. And if you look around and see how many people are in this Courtroom, more important how many people did not answer up, and multiply that by eight Courts going at the same time, you will understand how many officers would have to be called in off the street if we did not have the “Stand By” system, so there is a method to that madness.

At the second docket call, everyone who is serious about going to trial must be present,

including the Defendant and the State’s witness. If the State’s witness is not present at the second docket call, then the case would in all likelihood be dismissed, unless the State makes a Motion for Continuance for good cause which is granted by the Court. If the Defendant is not present at the second docket call, and no Motion for Continuance has been made by the Defendant or the Defendant’s attorney and granted by the Court, then any posted bond could be forfeited, and a warrant for the arrest of the Defendant could be issued.

In a few moments, this Court will go into recess for an hour. Between now and an hour from

now, if you do have an attorney, you should meet with your lawyer, or more appropriately your lawyer will come in, call your name and meet with you, to assist you in determining how you wish to proceed. If you do not have a lawyer, you may wish to meet with the Prosecutor when he/she returns and determine how you wish to proceed. You do not have to meet with the Prosecutor if you don’t want to. However, if you do decide to meet with the Prosecutor, I must caution you that traffic cases, like other Class C Misdemeanor cases, are criminal cases in the State of Texas, and therefore you are covered by the Constitution - you have an absolute 5th Amendment right against self- incrimination, that is, a right not to give evidence against yourself. Therefore, you want to be very careful about what you say to the Prosecutor if you decide to meet with him/her, because you do not want to say anything to the Prosecutor that may be used against you in trial later. In short, do not say anything that you don’t want to hear again. That is one of the advantages of having a lawyer to represent you, because a lawyer has no such restrictions.

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The last thing I need to tell you - if you are charged with driving without a driver’s license, and you got the license renewed within 10 days, if you can show the Prosecutor a valid Texas driver’s license today, the law allows the Court to dismiss a No Driver’s License case today. If you are charged with No Insurance, that is, Failure to Maintain Financial Responsibility, and you have paperwork from an insurance company or from the State of Texas, which shows that you, or the vehicle which you were driving, was covered on the date that you got the ticket, then the law allows the Court to dismiss a No Insurance ticket today. If you are charged with No Inspection or No Registration, and you can show that you got the vehicle inspected or registered within 10 days of the date that you got the ticket, then the Court can dismiss a registration or inspection ticket today, usually with a $10.00 [or $20.00] administrative fee. These are the only exceptions to the generally accepted strict liability principle of traffic cases.

Si usted habla solamente español, y usted tiene un abogado, su abogado estará

presente para reunirse con usted dentro de la próxima hora. Si usted no habla inglés, y usted desea hablar con el abogado del estado durante la próxima hora, por favor espere que el traductor llegue, y usted puede reunirse con el abogado del estado con el traductor.

To those of you who do not speak Spanish, what I believe I just said was “If you speak only

Spanish, and you have a lawyer, your lawyer will be in to meet with you within the next hour. If you do not speak English, and you wish to speak with the State’s attorney during the next hour, please wait for the translator to arrive, and you can meet with the State’s attorney with the translator.”

There are a few people that I need to see before we go into recess. If you heard the State

announce “Not Ready”, for whatever reason, please form a line and I will call you up individually so that we can deal with your cases. If the State announced “Ready Pending”, please meet with your lawyer during this recess, if you have one, or as I said you can meet with the Prosecutor, if you wish, prior to the next docket call. If you, your attorney, or the State has indicated that there is a Motion for Continuance, please stay where you are and I will call you up individually.

We are now in recess for an hour, until _____ o’clock. ___ M. [Call up people whose cases have been announced “Not Ready” and release] [Entertain Motions for Continuance from State and Defense]